221 Mass. 342 | Mass. | 1915
The reference to the master having operated as a waiver of the demurrer, the questions for decision are whether any of the defendant’s exceptions to the report are well taken and whether, upon the facts reported, the information can be maintained. Driscoll v. Smith, 184 Mass. 221.
The master was appointed to find the facts, and as the counsel for the defendant has argued only the exceptions relating to the admission of evidence, the remaining exceptions to alleged erroneous rulings of law are to be treated as waived. But, as the admissibility of the evidence is so interwoven with the principal question of dedication a separate discussion is unnecessary. The events as narrated by the master, preceding and subsequent to the- incorporation of the association which acquired title to the tract described in the information, leave no doubt of the purpose of the incorporators, not only to provide a place for holding camp, grove and other meetings of a social and religious character, but to create and establish a popular summer resort. St. of 1877, c. 98, § 1. Nye v. Whittemore, 193 Mass. 208.
It is also clear from the report that the present litigation would not have arisen if the association had not asserted the right to sell or lease portions of the parks, groves, squares, avenues, boulevards and shore fronts, delineated on the plan of the entire property which it caused to be prepared and filed in the registry of deeds. The streets or avenues, some of which have become public ways, could not be closed or materially encroached upon by the common grantor, as the purchasers of the lots have the right to their free and unobstructed use for ingress and egress as shown by the plan when they acquired title. Downey v. Hood & Sons, 203 Mass. 4. Flagg v. Phillips, 201 Mass. 216. Drew v. Wiswall, 183 Mass. 554, 555. Fox v. Union Sugar Refinery, 109 Mass. 292. Farnsworth v. Taylor, 9 Gray, 162.
No burden, however, is imposed on the public until the avenues and boulevards are laid out and established as required by statute, or unless they have become highways by prescription. R. L. c. 48, § 98. Bassett v. Harwich, 180 Mass. 585. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 549. Bartlett v. Bangor, 67 Maine, 460.
If the parks, squares, groves and shore fronts are built over, it is obvious that contiguous estates will be greatly impaired in value and the community itself will suffer from the taking away of conditions of light, air, prospect and recreation, essential to its attractiveness as a shore resort as well as to its future residential growth.
The entrance of the public upon them and the enjoyment of the privileges understood to have been offered fully appears in the report. Indeed, an uninterrupted general public use had continued for more than twenty years previous to the information. Abbott v. Cottage City, 143 Mass. 521, 525. Cincinnati v. White, 6 Pet. 431. The Queen v. Chorley, 12 Ad. & El. (N. S.) 515.
But, if ample evidence of acceptance appears, the inquiry re
The plan, in accordance with which house lots were put upon the market and sold, shows as we have said the avenues and boulevards, the parks, squares, groves and an unobstructed frontage on the water. And the master finds that the, association issued for several years circulars in large numbers, stating that heliotype copies of the plan could be had on application to its president or secretary, while the directors annually appointed an agent of the association and a committee “to attend to the sale of lots and to have general oversight of the local interests and public property of the association during the ensuing season.”
This committee bargained with prospective customers for the sale of lots and, sales having been made, the association executed the deeds. The evidence that in effecting sales one Gibbs, a member of this committee and who also acted at various times as agent, director and treasurer, called the attention of purchasers to the groves and open spaces appearing on the plan and informed them that they had a right to use the ways and the “•shore reserves,” as well as evidence of similar statements made on several occasions by the directors, including the president and the other agents entrusted with the sale of lots, was clearly admissible.
The defendant, as appears in the annual reports of the treasurer, having received the proceeds of the sales, with knowledge on the part of its officers of the conditions under which purchasers were induced to buy, is bound by the representations made
If, when sales were negotiated, the defendant’s officers and agents had stated or even intimated that the right to divide the open spaces into building lots after the resort should be established was reserved, there can be no doubt sales would have fallen off and very likely the whole enterprise would have been in jeopardy. As was said in Attorney General v. Abbott, 154 Mass. 323, 326, "If the corporation had an intention to reserve this right, the course pursued of inviting purchasers was inconsistent with common honesty.”
But evidence of the intention of the defendant is not confined to the plan, the sale of lots, or the circumstance's under which they were sold. The annual report for several years, which was accepted by vote of the association, contained these statements: “Parks and Groves. Waban Grove, 5 acres; Bay View Grove, 2 acres; Pavilion Park, V/% acres; Prospect Park, 3 acres; Shell Point Grove, 2J^ acres; Longwood Park, 1 acre; Wabasso Park, 1 acre; Camp Ground, 6 acres; Shore Land, 25 acres, more or less. . . . The value of pleasant parks and beautiful groves to complete the desired effect of our beautiful summer resort, both as a sanitary measure and an indispensable pleasure retreat, are too sacred to be estimated with figures, and they should never be encroached upon, except to be made more attractive with pleasant walks, shrubs and flowers.” “Our parks and groves, when viewed in the light of sanitation and pleasure, and beautifying of Onset as a summer home and spiritual resort, are priceless, and cannot be too carefully protected and guarded from encroachment of every nature. . . . Our parks and groves have no real cash value, as they are indispensable shore retreats and should never be encroached upon, only to beautify and adorn. . . . Our parks and groves have no relative cash value, as they are an indispensable pleasure retreat, and are looked upon as such by the town assessors and are not taxed.” And the report states that “the parks, groves and shore fronts were not assessed or taxed after the year 1881, and by vote of the directors were not included in the assets of the association.” The parks also were designated by signs bearing their respective names, and
The record contains nothing to indicate that these positive statements have ever been modified or withdrawn and the lot owners and the general public are found to have known of these assurances and to have acted upon them.
It is unnecessary to enlarge further upon the report, as enough appears from the principal findings, to which sufficient reference has been made, to warrant the finding of a continuing purpose to dedicate, even if no formal vote to that effect was ever passed by the association. Hobbs v. Lowell, 19 Pick. 405, 409. Noyes v. Ward, 19 Conn. 250, 266. Price v. Plainfield, 11 Vroom, 608. Wyman v. New York, 11 Wend. 486. Bartlett v. Bangor, 67 Maine, 460. Richardson v. Davis, 91 Md. 390, 396. Flershheim v. Baltimore, 85 Md. 489. Leggett v. Detroit, 137 Mich. 247, 254. Cincinnati v. White, 6 Pet. 431. Dillon Mun. Corp. (5th ed.) § 1079 and cases cited in note 2.
The intention to dedicate being plain, and the material facts to which we have adverted being ample to constitute dedication, the scope of the decree is to be determined.
While it is probable that during the sixteen years elapsing since the proceedings were begun and the presentation of the case to the full court many and important changes have occurred, and the environment may have been more or less transformed, the rights of the parties must be ascertained and adjusted on the record before us. We assume that the present Attorney General still prosecutes and controls the suit and that the brief of counsel for the relators is submitted with his sanction. Parker v. May, 5 Cush. 336. Attorney General v. Parker, 126 Mass. 216, 221.
It not having been contended that the “Camp Ground,” “Union Square” and “Pavilion Park,” where the office and other buildings are and which have been occupied and used by the association for business and other purposes, should be considered as within the dedication, a decree with costs is to be entered overruling the exceptions and confirming the report and with the exception of the “Camp, Ground,” “Union Square” and “Pavilion Park” restraining and enjoining the association from obstructing, selling, conveying, leasing or otherwise disposing of
Ordered accordingly.
